The two Boulder County commissioners who privately discussed fellow Commissioner Ben Pearlman's candidacy for the position of county attorney last week likely violated state open meetings laws, legal experts said Wednesday.

Commissioners Will Toor and Cindy Domenico held an executive session behind closed doors on Dec. 21 to discuss three finalists -- including Pearlman -- for the job of county attorney. They gave Pearlman the $125,000-a-year job two days later.

Steve Zansberg, an attorney for the Colorado Press Association who also represents the Camera and is an expert on state open meetings laws, said the commissioners were not allowed to discuss Pearlman behind closed doors.

Will Toor (PAUL AIKEN)

While the commissioners may meet privately to discuss personnel matters, including other candidates for the county attorney's post, "they cannot discuss an elected official or any member of the Board of County Commissioners under that exemption," Zansberg said.

A 2009 district court judge in Larimer County ruled that the Board of Governors for Colorado State University violated state open meetings laws when it discussed the candidacy of sitting board member Joseph Blake for the position of CSU chancellor.

The judge specifically ruled that the personnel exemption in the open meetings law does not apply to "discussions concerning any member of the state public body."

Dan Rowland, a spokesman for the Boulder County commissioners, said Wednesday that it's the county's position that the leaders were allowed to go into executive session because they also were discussing another candidate, deputy county attorney Madeline Meacham -- not just Pearlman.

"You can't discuss Madeline as a potential county attorney without discussing the other two applicants," Rowland said. "(Outgoing County Attorney Larry Hoyt) believes that talking about Ben in the context as a finalist for the county attorney's job is not only OK, but necessary."

Cindy Domenico

The CSU case makes it clear that discussions solely related to candidates who were not board members would not violate the law, but discussing one of the board's own members did.

The judge also ruled that the board's discussion of another candidate was "inextricably intertwined" with talk about the board member, and therefore violated state law.

Adam Platt, an attorney who specializes in open meeting laws with the Denver firm Halifax Legal, said he also thinks the CSU case applies to the Boulder commissioners.

"The text of the Colorado Open Meetings Law, as well as prior case law, is clear that an executive session may not be properly convened to discuss a sitting member of the same local public body," Platt said.

In other words, the commissioners can't talk about other commissioners behind closed doors for any reason, including for a job interview, Platt said. Several other attorneys contacted Wednesday -- including municipal attorneys who represent elected officials -- affirmed that assessment.

If a judge were to rule that the Boulder commissioners violated the law, the county could be forced to release audio recordings from the executive session, as the CSU officials were.

Mix-up about meeting

Also Wednesday, Boulder County officials apologized for providing the Camera with incorrect information last week about how the commissioners would make their final pick for county attorney.

While officials initially told a Camera reporter there would not be a public vote, the leaders did hold a public meeting Friday morning in which they selected Pearlman. Notice of that meeting was posted only on a bulletin board at the county's offices in the Boulder County Courthouse on Pearl Street.

The county on Wednesday provided an audio recording of that meeting, in which Commissioners Toor and Domenico can be heard selecting Pearlman as the new county attorney. No members of the public and no county staff attended the meeting.

During the nearly six-minute conversation, the commissioners praised the outgoing county attorney and said that Pearlman was the best of the original 19 candidates who applied for the post.

"A lot of it comes down to the nature of the skills that I think we need over the next several years," Toor can be heard saying on the recording. "What we really need, at least at this time... is really someone who has the management and personnel skills to pull the County Attorney's Office together (as a team.)

"The person who really had the strongest management and personnel skills was Ben Pearlman."

Domenico agreed when Toor went on to address the potential political pushback that picking a sitting commissioner for the job might generate.

"I was, frankly, hoping that there would be another candidate who would bring the appropriate mix of skills, because there's clearly some political challenges," Toor said during the meeting.

The first public announcement of the two commissioners' decision was made nearly six hours later, at 4 p.m., just before the start of the long holiday weekend.

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